Anil Kumar Malhotra vs Union Of India And Others

Order disposing off the OA pronounced. signed and dated

Having been found medically and physically fit, the applicant, who joined the Army on 22.08.1976, was invalided out of service on 22.06.1987 in low

medical category PARANOID REACTION (OLD) V-67 (297), a disability which was assessed at 70% for two years, but treating it neither

attributable to nor aggravated by military service, by Release Medical Board, now seeks disability pension. The applicant was granted only invalid

pension vide PCDA (P)Allahabad PPO No. G1/M/52040 dated 1.01.1988.

Learned counsel for the applicant contended that the instant matter is squarely covered by a catena of decisions of the Hon'ble Supreme Court

including Dharanivir Singh Vs. Union of India and Ors. (2013) 7 SCC 31.6 Union of India and Ors Vs. Rajvir Singh (2015) 12 SCC 26 4and Union of

India and Ors Vs Angad Singh Titaria, (2015) 12 SCC 257. Further, the claim of the applicant is also supported by relevant rules

Per contra, learned counsel for the respondents contended that the applicant is not entitled to the relief claimed since the Release Medical Board,

being an Expert Body, found the disability ""Neither Attributable to Nor Aggravated (NANA) by Military Service"".

Having heard learned counsel on both sides. we are of the view that the case on hand is squarely covered by the decisions referred to herein

above. In Dharamvir Singh (supra) the Hontle Supreme Court held that any disability sustained during the course of Military Service will be attributed

to service conditions unless the disability was such that the disease could not have been detected during medical examination before a person is

selected for Defence Service and furthermore before arriving at a conclusion, the Release Medical Board should have assigned reasons, in writing,

that the disability was not due to Military Service. There is no dispute with regard to the fact that when the applicant entered into service, he was not

suffering from any disease and that the disability in question was detected/sustained only during the course of his Military Service.

The present case, where the applicant was invalided out of service, is also covered by the judgement of the Hon'ble Apex Court in Sukhvinder

Singh's case (supra), wherein it was observed that it would be extremely disturbing if the Authorities are perceived as being impervious or

unsympathetic towards members of the Armed Forces who have suffered disabilities; without receiving any form of recompense or source of

sustenance. since these are extricably germane to their source of livelihood Hon'ble Apex Court. after taking note of various rules and regulations.

relating to the grant of pension. held as under:

We are of the persuasion, therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been

caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in

favour of the member of the Armed Forces; any other conclusion would be tantamount to granting a premium to the Recruitment Medical

Board for their own negligence. Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads

to loss of service without any recompense, this morale would be severely undermined. Thirdly, there appears to be no provisions authorising

the discharge or invaliding out of service where the disability is below twenty per cent and seems to us to be logically so. Fourthly, wherever

a member of the Armed Forces is invalided out of service, it perforce has to be assumed that his disability was found to be above twenty per

cent. Fifthly, as per the extant Rules/Regulations, a disability leading to invaliding out of service would attract the grant of fifty per cent

disability pension.

The issue of implementation of orders of the Hon'ble Supreme Court in the matter of Dharamvir Singh (supra) in respect of Armed Forces

Personnel in NANA cases was taken up with the Department of Expenditure, Ministry of Finance for consideration. Accordingly, Ministry of

Defence vide their letter dated 29' June, 2017 sent to the Chief of Staff of Army, Navy and Air Force for implementation of the orders of Honlble

Supreme Court, has laid down the following essential parameters for allowing disability pension:

I. The question whether a disability is attributable or aggravated by military service is to be determined under ""Entitlement Rules for

Casualty Pensionary Awards 1982.

II. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of

entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be

presumed due to service.

III. If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has laid to an

individual's discharge or death will be deemed to have arisen in the service.

IV. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and

that disease will not be deemed to have arisen during service, the medical board is required to state the reasons.

In the light of the preceding paragraphs and essential parameters given aforesaid, we hereby set aside the impugned order rejecting the claim of the

applicant for disability element of disability pension and hold that he is entitled to the same from the date of his pre-mature release at the rate of 30%

for life, which is to be broad banded to 50% for life in the light of the judgment of the Hon'ble Supreme Court in Union of India and Ors. Vs. Ram

Avtar decided on 10' December, 2014.

The respondents are directed to release the arrears within a period of six months from the date of receipt of a copy of this order, failing which the

arrears shall carry interest at the rate of eight per cent per annum till the actual date of payment.

9 Since the applicant has come to this Tribunal after considerable delay, hence the arrears are restricted to three years prior to the date of filing of the

application.

The 0.A. stands disposed of in the above terms with no order as to costs

Pronounced in open court on 1st August, 2019